Maher v. Louisiana Ry. & Nav. Co.

78 So. 602, 143 La. 386, 1918 La. LEXIS 1643

• Court: Supreme Court of Louisiana
• Decided: April 29, 1918
• Docket: No. 22864
• Status: Published

Opinion

PROVOSTY, J.

The plaintiff alleges that while he was walking across the tracks of the defendant company's railroad in the city of Baton Rouge he was knocked down without any fault of his own by a train of the defendant, as the result of no lookout having been kept by the crew of the train and of absence of all warning, either by sound ox-light, of the approach of the train.

An exception of no cause of action was sustained, and the suit dismissed.

[1-3] A cause of action is shown, we think. A man who is run down by a train upon a. street crossing is not necessarily at fault. He is so only if he has contributed to the event by his negligence; and the burden of pleading contributory negligence is on the defendant, not on plaintiff. True, the petition in such a case should show absence of design on the part of plaintiff to bring about the accident, but this is shown in this case by the allegation that plaintiff was in no wise at fault.

The judgment appealed from is set aside, and the case is remanded to be proceeded with according to law.